The Church's Evolving View on the Death Penalty

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"The legitimate use of punishment to defend the order of justice should include remedies for both the victims and the perpetrators of crime," Archbishop Wilton D. Gregory of Atlanta said Oct. 7, 2008, in a speech on the death penalty at Emory University Law School in Atlanta. Co-sponsored by the university's Center for the Study of Law and Religion and the Aquinas Center of Theology, the talk kicked off a lecture series on the theme "When Law and Religion Meet." Archbishop Gregory discussed the influence of Pope John Paul II on the Catholic Church's present stance on the death penalty, including revisions made to the Catechism of the Catholic Church, and the church's traditional view of the death penalty.

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Catholic News Service, Washington, D.C., November 13, 2008

Allow me to begin by thanking Emory Law School and the Aquinas Institute for inviting me to discuss one of the important life issues confronting American society today and for the opportunity to articulate the present and traditional stance of the Catholic Church regarding the use of the death penalty. I address this issue not as an expert on civil jurisprudence nor as a specialist in criminal justice, but as a pastor and teacher of the Catholic Church of Atlanta, which is united to a religious tradition spanning 2,000 years of history.

A Change in the Catechism

Let me approach what is distinct about my own church's engagement with the issue of capital punishment by referring to a historical anomaly that occurred in the 1990s. As some of you may know, the Catholic Church approved in 1992 its first universal catechism in over four centuries. In the words of Pope John Paul II, this text serves as a "full, complete exposition of Catholic doctrine, enabling everyone to know what the church professes, celebrates, lives and prays in her daily life."(1)

In the short span of time between the first edition of the text and the final official Latin version issued in 1997, the section pertaining to the death penalty was significantly revised. What brought about this change in the catechetical presentation of the church's moral stance?

The key distinction between the original and the official versions of the catechism's exposition of the morality of the death penalty is the way in which the purposes of punishment are defined. We see that in the provisional, or first, edition the section on the death penalty upheld a traditional Catholic principle, namely, "the right and duty of legitimate public authority to punish malefactors by means of penalties commensurate with the gravity of the crime, not excluding, in cases of extreme gravity, the death penalty."(2)

The 1992 text then asserts that "the primary effect of punishment is to redress the disorder caused by the offense."(3) Finally, it states, "If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority should limit itself to such means because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person."(4)

This earlier edition of the catechism retains the traditional teaching of the church, permitting the use of capital punishment to defend life and protect public order, thereby redressing the disorder caused by the offense. The preference for the use of "bloodless means" is in line with the whole tradition of the church because, even in lawfully carrying out justice for the sake of society, Christians are called to show mercy and not vengeance.

When the second edition of the Catechism of the Catholic Church appeared in 1997, some readers were surprised to discover that the purpose of capital punishment as restitution of public order had been removed from the discussion. In addition, the corresponding notion of capital punishment as deterrence to further capital crimes was also reduced. Between the publication of the first edition and that of the official Latin version, Pope John Paul II had issued an important encyclical letter titled "On Human Life" (Evangelium Vitae, 1995) that took up a number of moral issues related to the defense of human life and dignity, including the death penalty. It appears that the late pontiff's analysis on capital punishment had an impact on the Vatican commission charged with overseeing the revisions of a teaching instrument that is normative for the moral discernment of the world's 1.1 billion Catholics.

Once the 1997 version of the catechism eliminated the protection of public order as an argument, the only justification for the deterrent value of capital punishment was that it defended human beings against an aggressor. In looking at the revised version of the text, one would have to conclude that the only purpose that would render an execution morally licit, according to Catholic teaching, is the defense of society from the particular criminal whose sentencing is under question.

The new paragraphs conclude with an assertion taken directly from Evangelium Vitae that the U.S. bishops understand to imply "a very restrictive application of the death penalty."(5) The new text, based on John Paul II's moral analysis, maintains that "the cases in which the execution of the offender is an absolute necessity are very rare, if not practically nonexistent."(6) It appears, then, that the revised Catholic teaching on capital punishment is closely associated with the influence of the late pontiff.

One other point should be noted about these changes in the Catholic catechism. By narrowing the permissible situations for the moral application of the death penalty, the editors of the catechism also followed John Paul II's lead in reorienting the issue to the broader discussion of legitimate defense.(7) The late pope reasserts that the primary purpose of punishment is to "redress the disorder caused by the offense," which includes rectifying the violation of personal and social rights.

Yet punishment also provides the offender with "the condition to regain the exercise of his or her freedom."(8) In other words, the legitimate use of punishment to defend the order of justice should include remedies for both the victims and the perpetrators of crime.

Before the Catechism

At this point I would like to provide a brief review of the traditional teaching of the Catholic Church prior to changes in the catechism. The last decade was certainly not the first time the Catholic Church had taken up a consideration of the morality of the death penalty. The Catholic response to crime and punishment has been rooted in our biblically grounded convictions about good and evil, sin and redemption, justice and mercy.

The opening chapters of the Book of Genesis teach that every life is a precious gift from God. From the standpoint of both the Old and New Testaments, Christians affirm that human beings are created in God's image and redeemed by Jesus Christ, who himself was executed between two criminals. On the basis of the biblical witness, even the dignity of those who deny the dignity of others is itself a gift from God, rather than something that is earned or lost through malicious behavior.

In looking specifically to the Old Testament, we must confront the fact that the law of Moses prescribes execution for at least 36 offenses.(9) The biblical justification of capital punishment has led some Christians to argue that statements such as "a life for a life ... limb for limb, eye for eye, tooth for tooth" require that the death penalty be used for certain crimes (Lv 24:18-20. See also Ex 21:24).(10)

Some interpreters also identify certain New Testament texts as supporting the use of executions, as when Jesus refers to the Mosaic teaching that "he who speaks evil of father or mother, let him surely die" (Mt 5:4; Mk 7:10). Likewise, the fact that the good thief, crucified alongside Jesus, acknowledges the justice of his own death sentence has been enlisted as an argument favoring the use of the death penalty by Christians (Lk 23:41). The author of Hebrews attests that those who reject the Torah should be executed "without pity" (Heb 10:28).

A deeper reading of these passages indicates, however, that the principal intent of the Mosaic statutes was to limit the retribution that could be exacted for an offense and not to require a minimum punishment. Particular commands like the one found in Genesis 9:6 - "If anyone sheds the blood of man, by man shall his blood be shed" - have a poetic character that indicates an original purpose that was not legal in intent. Such verses convey a pedagogical purpose removed from the sphere of literal legal applications.(11)

Furthermore, it is a fundamental Catholic principle to read individual passages of Scripture in the context of the whole canon. While the Old and New Testaments admittedly include some passages that command taking the life of one who kills, the Jewish Scriptures and the teachings of Jesus Christ as a whole esteem the protection of human life, the practice of mercy and the rejection of vengeance.

We may recall that when Cain killed his brother Abel, God did not end Cain's life. Instead, he sent the murderous brother into exile, not only sparing his life but protecting him by putting "a mark on Cain, lest anyone should kill him at sight" (Gn 4:15).(12) When faced with an execution of a public sinner, Jesus exposes the network of malevolence that underlies the adulterous actions of the woman who faces death by stoning (Jn 8:1-11).

Attentive to moral prescriptions in Scripture and the example of Christ, Christian authors in the first four centuries by and large confirmed the right, and sometimes the duty, of civil authorities to impose the death penalty for certain crimes. Had not St. Paul understood that the magistrate bears the sword for a divine purpose? Are they not ministers of God? (Rom 13:1-7).(13) Absent the prerogatives of the state to exact punishment for infractions against civil peace, society would descend into chaos.

While many of the church fathers acknowledged the need to use force in shoring up the defenses against injustice, there was also resistance to allowing Christian believers to participate in state-sanctioned violence.(14) Even in cases in which the offense was grave, eminent writers like Tertullian of Carthage and Origen of Alexandria manifested a clear preference for mercy and an aversion to all punishment that involved the shedding of blood.

Following the Edict of Milan by Constantine (313) and the rise of the Christian state, Christian authorities adopted a near unanimous support for capital punishment in delimited circumstances.(15) Augustine of Hippo, for example, asserted that participation in war or in the legal execution of criminals in no way contravenes the commandment "You shall not kill" (Ex 20:13). Yet the Latin doctor also maintained the necessity of purity of motive when carrying out a capital sentence.(16) Acting as judge or executioner requires an interior disposition of remorse.

In a similar vein, centuries later Pope Innocent III (1161-1216) sanctioned capital punishment so long as it was carried out "with justice, and not out of hatred; with prudence, and not with precipitation."(17) In an exercise of the church's solemn teaching authority, the Fourth Lateran Council (1215) promulgated that "no cleric may decree or pronounce a sentence involving the shedding of blood, or carry out a punishment involving the same, or be present when such punishment is carried out."(18)

While deepening alliances between the ecclesiastical and civil realms led the church to accept the participation of Christians in the process of executing criminals, popes and other bishops refused to permit the clergy and the monks from being directly involved in such activity.(19) Drawing on Scripture, the scholastic doctor Thomas Aquinas, argued that ecclesiastical courts and the state should refrain from using the death penalty except for very grave offenses such as murder and treason.(20)

Recent History

Having reflected on the historical attitudes of the early Christians and the church of the Middle Ages, let us examine for a moment the recent history of this Catholic discussion. But let me first advert to something that may not be clear to observers of our church's role in public life. We Catholic bishops participate in public policy discussions about matters like the death penalty because "Christ's love for us lets us see our human dignity in full clarity and compels us to love our neighbors as he has loved us."(21)

In applying the mystery of our faith to the social and political issues of our time, Pope Benedict XVI asserts that "the church cannot and must not take upon herself the political battle to bring about the most just society possible. She cannot and must not replace the state. Yet at the same time she cannot and must not remain on the sidelines in the fight for justice."(22)

While the objectives of church and state remain distinct, we believe that our faith has an important and reasonable voice in the moral debates of our time. The church's mission in society, and its primary task in this specific debate, is to promote what we call a "culture of life" in which every human being, whether innocent of wrongdoing or guilty of serious violations of the law, is nevertheless recognized to have an innate and inalienable value.

It has been noted that after World War II many European countries began to question a state's right to impose death on its citizens. In 1974 the U.S. Catholic Conference, the voice for the collective action of the American bishops, declared its opposition to the institution of capital punishment.(23) Then in 1976, the same year that the U.S. Supreme Court reinstated the death penalty after a moratorium of four years, the papal Commission for Justice and Peace expressed opposition to its use.(24)

Over the last 30-plus years, the interventions of the U.S. bishops on the question of the death penalty follow a pattern similar to that of the Catholic Church in other regions. The intent has been the same, namely, to limit, restrain or end the use of society's ultimate punishment.

Since the first comprehensive statement on capital punishment in 1980, the U.S. Conference of Catholic Bishops has continued to call for an end to the use of the death penalty in our country.(25) In 1999 the bishops again made an appeal to abolish the death penalty, which was followed in 2000 by the document "Responsibility, Rehabilitation and Restoration: A Catholic Perspective on Crime and Criminal Justice." This latter statement concludes by "renewing our call to end the death penalty." Most recently, in 2005 the bishops began a national Campaign to End the Use of the Death Penalty, which sought to educate Catholics and non-Catholics and to inform state and congressional legislators as well as the courts about the church's teaching.(26)

In the 1980 statement the bishops begin by recounting the three court decisions which led to the resumption of capital punishment in the United States. We recognize that the values at play in the debate are those of "highest importance": respect for the sanctity of all human life, the protection of innocent human life, the preservation of order in society and the achievement of justice through law.(27)

The statement considered the three traditional justifications for punishment: retribution, deterrence and reform. The bishops claim that the purpose of reform is not aided by capital punishment because the opportunity for a prisoner to reform is cut short. Considering deterrence, the bishops concede that the death penalty defends society from the particular prisoner who committed the grave offense for which capital punishment is prescribed; yet we also register serious doubt as to the deterrence value of executions in relation to those who might commit heinous crimes in the future. The 1980 statement highlights the questionable basis for this second justification, a critique that would continue to factor into the intramural Catholic discussion of later years.

Finally, we bishops examine the argument based on the societal and individual need for retribution, which we also regard as unconvincing: "Forms of punishment must be determined with a view to the protection of society and its members and to the reformation of the criminal and his reintegration into society."(28) We bishops of the United States conclude therefore that the imposition of the death penalty under the conditions of contemporary American society is not justified in view of the traditional purposes of punishment.

The Death Penalty as a Deterrent

Like other death penalty opponents, Catholic leadership has pointed to the systematic flaws in the application of capital punishment, including the well-documented economic and racial inequality that inheres in the trials and sentencing of capital offenders. We bishops have also pointed to the alarming number of mistaken convictions of men and women on death row who were later exonerated.

Yet much of our attention in this discussion on the death penalty continues to focus on the deterrence rationale since this aspect of the debate continues to be central to public debate. Already in 1980 we were on record as saying that the argument that executions deter potential offenders from committing capital crimes lacks empirical support. Against the backdrop of the already-mentioned developments of the 1990s, which include the changes in the catechism and the commentary of John Paul II, our episcopal conference continues to maintain that capital punishment deters only the potential crimes of those on whom it is carried out.

It is clear to many observers that the Catholic Church has undergone a development in its teaching on the death penalty. Only in the last 40 years of its history has the church come out against state-sponsored executions, except in highly delimited circumstances. Such a departure from previous teaching, which stretches back almost two millennia, is bound to invite controversy within the ranks of the Catholic faithful.

One of the most prominent intra-Catholic debates in recent years was initiated at a conference at the University of Chicago in 2002. Two prominent American Catholic participants, Supreme Court Justice Antonin Scalia and Cardinal Avery Dulles, took up the historical, moral and legal dimensions of the issues which we have been discussing. The justice and legal scholar, on the one hand, and the cardinal-theologian, on the other hand, continued their spirited exchange in a series of articles and correspondences that appeared in the journal First Things and the weekly National Catholic Register.(29)

Justice Scalia takes the position that the church, which has always permitted the use of the death penalty, has changed its historic position in the already-mentioned passages of the catechism and in John Paul II's Evangelium Vitae.(30) Such alterations in traditional moral teaching, he argues, were imprudent to say the least.

Scalia challenges the core claim made by the late pontiff that the death penalty is morally permissible only "when it would not be possible otherwise to defend society" and that "today ... such cases are very rare, if not practically nonexistent."(31) In other words, the pope ends up reducing the moral permissibility of capital punishment to those rare instances in which it is not possible to incarcerate someone safely and keep them from harming society.

The claim that modern society is capable of protecting itself from violent aggressors may not be so clear-cut. Scalia cites the circumstances in which prisoners escape from prison or kill fellow inmates and prison guards. Apart from whether other means of punishment are feasible or not, another and more fundamental principle is at stake. Catholic leadership appears no longer to allow capital punishment in order to defend society through deterrence, a principle which Justice Scalia says the church has for centuries held to be morally binding.

The Catholic jurist understands that this "new teaching" is no exercise of papal infallibility nor does it compel faithful Catholics to render their assent to it. As a teaching of the authentic magisterium of the church, it merely requires respect and thoughtful attention by the membership.

Scalia goes on to say that if he believed the recent developments in teaching on the death penalty were substantively correct and also binding on the faithful as a matter of Catholic faith, he would have to decide whether to violate either his responsibilities as a judge or his commitment to the Catholic faith. If that were so, he would rather resign his office than face such conflicting obligations. However, since the "new teaching" is contrary to traditional Catholic moral reasoning, Scalia believes that he is not in such a predicament and can therefore remain both a Supreme Court justice and a Catholic in good standing.

Unlike Justice Scalia, Avery Dulles finds no rupture in the development of Catholic teaching on the death penalty. The Jesuit cardinal distinguishes between theological affirmations, which allow for the death penalty in certain instances, and their practical application to contemporary contexts. By virtue of their office, the church's pastors receive the guidance of the Holy Spirit to apply the principles of justice to public policy on matters like the death penalty. When they do so on behalf of their faithful and the common good, they make a prudential application of these principles to the contingent circumstances of contemporary society.

After recounting the history of the church's position, Cardinal Dulles argues that when it comes to the death penalty each of the traditional ends of punishment carry a different weight. For example, defending against the particular criminal carries a greater weight than deterrence against criminals committing a similar crime in the future.

Agreeing with Scalia, the American cardinal affirms that the death penalty is not a violation of the right to life of a person who has committed a deliberate and heinous crime. Yet while referencing the recent statements of the American bishops, Dulles contends that "the magisterium is not changing the doctrine of the church." Moreover, "the pope and bishops, using their prudential judgment, have concluded that in contemporary society, at least in countries like our own, the death penalty ought not to be invoked, because, on balance, it does more harm than good."(32)

The Jesuit cardinal acknowledges that public executions might have a deterrent value were they to be painful, humiliating and public. Yet such violent spectacles, which were condemned by the early Fathers of the Church, certainly have a deleterious effect on the moral health of society.(33) Dulles concludes by recognizing that because the death penalty is administered privately and in most situations by such presumably painless means as lethal injection, it does not contribute to the deterrence of other criminals from capital crimes.

My Own View

Having reflected with you on the historical and contemporary positions of my church on this ever-present issue of public morality, I must now own up to my own view as a Catholic bishop and American citizen. It is clear to me that Avery Dulles, who follows the lead of my brother bishops, has the stronger case. The statements of the supreme pontiff and those of the American hierarchy over the last 40 years are by no means inconsistent with historical Catholic teaching on just punishment and the need to safeguard human life and social goods.

As Dulles argues, opposition to the death penalty is contingent on context. The state has the right to defend against unjust aggressors and in some limited cases may apply punishment by execution. The church's pastors have recognized that to civil authorities belongs the duty to defend all human life when it is wantonly or unjustly endangered. The particular aspect of capital punishment that has changed in contemporary society from centuries past is the claim that the punishment for capital crimes necessarily requires execution as a deterrent to other potential offenders. The bishops of the United States have expressed concern over the inconclusive studies on this matter, and the commission revising the catechism has left this issue out of the final version of the text.

There is a growing belief that the idea that the death penalty prevents others from committing capital crimes is unfounded. The hard facts remain inconclusive, as researchers often disagree with one another. At a February 2006 hearing of the Senate Judiciary subcommittee on the Constitution titled, "An Examination of the Death Penalty in the United States," a researcher from Columbia University testified that "the claims of a 'new deterrence' fall apart under close scrutiny. These studies are fraught with numerous technical and conceptual errors."(34)

In addition, the Death Penalty Information Center provides a review of the most recent deterrence studies. In a series of academic responses to the studies which support deterrence, found in journals such as the Stamford Law Review and the Annual Review of Law and Social Science, prominent researchers attest that the way in which these positive studies have reached their conclusions are full of statistical errors and an imprudent use of evidence.(35)

A study in the Annual Review takes issue with the groundbreaking deterrence studies of the 1970s which were used in justifying the reinstitution of the death penalty. While one report claimed that the execution of one offender saves the lives of 18 people on average, recent statistical analyses show that this study omitted "key potential variables," such as murders that are crimes of passion and jealousy which have little correlation to the deterrent impact of executions.(36)

Another report published by the Death Penalty Information Center shows the results of a survey of experts from the American Society of Criminology, the Academy of Criminal Justice Sciences, and the Law and Society Association. An "overwhelming majority did not believe that the death penalty is a proven deterrent to homicide. Over 80 percent of the social scientists surveyed believe that the existing research fails to support a deterrence justification for the death penalty."(37)

Pope John Paul II's Example

While John Paul II greatly influenced the development of the Catholic position on capital punishment, he also wrote and spoke passionately against the use of the death penalty in his homilies and speeches. On several occasions he pleaded for clemency for individuals on death row in the United States.(38)

His challenge to our society in extending mercy even where it appeared to the public as unwarranted was articulated well during his 1999 homily at the papal Mass in St Louis, Mo. The Polish pope invited worshippers to join the "new evangelization," which "calls for followers of Christ who are unconditionally pro-life: who will proclaim, celebrate and serve the Gospel of life in every situation ... even in the case of someone who has done great evil." He then called for "a consensus to the end of the death penalty, which is cruel and unnecessary."(39)

The Holy Father's strong stance on the death penalty, like his call for mercy and protection of all human life, not only carries the weight of his ecclesial office, but it is backed up by his own personal witness.

When John Paul II was shot in 1981, he experienced the unjust suffering of a victim. Such an assassination attempt, especially on a high-profile person, can still result in a death sentence for the perpetrator. Yet the Holy Father chose not to seek vengeance or even what might be considered the maximal punishment under the law. Instead, the pope gave the world a tremendous witness of mercy when he forgave Mehmet Ali Agca, the Turkish Muslim who had tried to assassinate him. The pontiff even went to pray with him in his prison cell, and later successfully lobbied with the Italian government to grant him a pardon during the jubilee year of 2000.

The same pontiff had offered a similar gesture of mercy during his visit to St. Louis in 1999. On the first day of the pope's visit to the city, Darrell Mease, a convicted killer, was sentenced to die by lethal injection. John Paul II pleaded with Gov. Mel Carnahan to stay the execution, and Mease's sentence was commuted to life without parole.(40) While the state continued to execute its prisoners on death row following the papal visit, and this despite further requests by the Vatican to halt the death penalty regime in Missouri, the commutation granted by a government official to a death row prisoner attests to the moral force of the late pontiff's advocacy for a culture of life.

In seeking to contribute to a civilization that promotes human dignity, the Catholic Church desires to strike a balance between the demands of justice and the need for the very acts of mercy that make it easier for people to practice compassion and justice. The Catholic moral tradition, as referenced in this presentation on capital punishment, shows an unambiguous preference to preserve life even when the order of justice is threatened and the safety of innocent life is at stake. While acknowledging the moral and legal prerogative of the state to execute criminals in strictly limited circumstances, the church pleads for restraint in the exercise of that prerogative.

The moral requirement to protect the innocent stands alongside the imperative to stem the cycle of violence that keeps individuals and communities enslaved to vengeance. As Mohandas Gandhi once said, "An eye for an eye makes the whole world blind."

As heirs to the vision of the brotherly communion that Jesus Christ imparted to his disciples, we Catholic bishops long for an American society that is neither insensitive to the demands of justice nor blind to the need for mercy. As did our bishop-forebears in the ancient and medieval periods, we seek to make prudential application of the timeless principles of the moral law to the ever-changing circumstances of society.

In this presentation I have tried to show how the development in our teaching on capital punishment is consistent with our historic mission to preach the Gospel and advance the common good of society. I am grateful to this university community for an opportunity to speak to this public discussion of critical importance from my own tradition of faith and in my capacity as a pastor to the Catholic people of Atlanta. Thank you and God bless you.

(15) Yet this support was usually mitigated by an appeal for mercy by the church's pastors. See the discussion in Brugger, E. Christian, Capital Punishment and Roman Catholic Moral Tradition, Notre Dame, Ind.: University of Notre Dame Press, 2003, 84-85.